Attorney General Nancy Rogers’ Employment Law Section
In the United States Supreme Court term that ended in June, the justices decided
only 71 cases, the lowest number in recent memory. However, the Court’s interest in
labor and employment issues is not waning, as shown by no fewer than ten opinions
addressing issues about laws that govern the workplace. Here are some of the high-
lights of the 2007-2008 term:
“CLASS OF ONE” THEORY REJECTED
In a case with major implications for state employers, the Court held that public
employee lawsuits based on the Equal Protection Clause of the U.S. Constitution are
limited to actions in which the discrimination is allegedly based on the employee’s
membership in a recognized group.1 Anup Engquist brought suit claiming she was
arbitrarily mistreated and denied equal protection merely based on who she was, not
based on any class she was a member of the so-called “class of one” theory. Specifi-
cally, Engquist accused her supervisor of excessive monitoring and making false state-
ments about her. The supervisor later reorganized the department so that Engquist’s
position was eliminated and she had no displacement rights to another position.
The Court, while recognizing that the “class of one” theory has been recognized
when the government acts as a regulator, e.g., in taxation and zoning matters, con-
cluded the employment context was different. The Court stressed that as an employer,
the government has a lot more leeway than it does as regulator or sovereign, adding
that “government offices could not function if every employment decision became a
constitutional matter.”2
The Court also noted the impracticalities of the class of one theory: “The practical prob-
lem with allowing class-of-one claims to go forward in this context is not that it will be too
easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of
such claims in the first place, and courts will be obliged to sort through them in a search
for the prov